36 One may consider that whether or not the current competition enforcement system shall be modified. In view of the evolving case law in the judgments of KME 152 and Chalkor 153 , the answer to whether any changes to the review of EU competition enforcement scheme are required for the compliance with Article 6(1) of the ECHR has been in tentatively negative tone. 154 From the perspective of the CJEU, since the review before the EU Courts includes the review of law and facts, which means the Courts have the power to annul the Commission’s decisions and change the amount of fines, this implies that EU competition law is in accordance with Article 47 of the EUCFR and that there is no infringement of the standard of effective judicial protection in that provision. Moreover, in the current enforcement system, there are already sufficient guarantees of undertakings’ due process rights in investigations of competition matters. As a consequence, in Graells’ point of view, he claims that it is unnecessary to set up a more protective enforcement scheme, and he also states that there is sufficiency in the scope or intensity of judicial review in EU competition law cases. 155 Nonetheless, one discussion 156 stemming from the implication of the Menarini judgment focused on whether or not the EU Courts really obtain ‘full jurisdiction’ in respect of the Commission’s decisions to impose fines to cancel, reduce or increase the fines. In fact, executive institutions have some policy discretion, at least within the scope that they are granted by the legislature. By contrast, if the Commission exercises its discretionary power to decide a criminal penalty, this would be unacceptable from a perspective of fundamental rights. Subsequently, as the legality of a competition law fine relies on the full review by a court, an important issue arose: whether or not an appeal to the court should have an effect to suspend the obligation to pay the fine. More specifically, if an administrative criminal sanction is enforced without reviewing by a court, there is a question regarding whether this is consistent with the standard set out in Article 6 of the ECHR. 152 KME (n12). 153 Chalkor (n13). 154 Graells (n 41) p4. 155 Graells (n 41) p5. 156 Bronckers and Vallery (n90) 283.
37 Following the opinion above, it takes issue with Graells’ argument related to the lack of necessity for changes in the current enforcement scheme. 157 This position implies that certain aspects of the current set-up are difficult to accord with a fair trial. Regarding the high-fine imposition cases, some scholars argued that since the Commissioners are not judges and the Commission itself is not a tribunal, there seems no opportunity to carry out the right to cross-examine and other rights usually protected in criminal law proceedings. 158 Although Article 14(1) of the Implementing Regulation provides an oral hearing as an internal guarantee to avoid the Commission’s manifest error, the issue is that this hearing is not compulsory. Moreover, the position of the Hearing Officer does not separate from the Commission. Given that the Commission actually has the competition policy to defend and to win the antitrust cases, it is thus difficult to accept that the Commission having such internal policy could set an effective brake on these inherent biases, while making decisions on fine sanction. Furthermore, suspected companies would face the fear of severe fines, and they are unable to appeal their case prior to the first-instance decision. 159 As a result, should the Commission’s power to issue criminal sanctions be condemned as contrary to the principles of a fair trial, and should a transfer of decision-making power to the courts be required, it would be impossible to distinguish between efficient and inefficient judiciaries in the EU. Prior to expanding this fundamental rights argument to the widest scope, it seems necessary to make sure that courts in the EU as a whole are ready to enforce competition law. In other words, an approximation of fairness for a transitional period might have to be accepted, with improvements being implemented to the administrative process, so as not to jeopardise the effectiveness of competition law. 160 Simultaneously, in those countries where courts operate effectively, a transfer of decision-making power from the competition authorities to the courts could have already been put in motion. Indeed, this is a change from the initial set-up of EU competition enforcement system. 157 Ibid. 158 Lianos and Andreangeli (n 48) 413. 159 Ibid p297. 160 Ibid.